Unofficial Opinion 98-6

June 18, 1998

To:

City Attorney Columbus, Georgia

Re:

The proposed Columbus ordinance regulating the manner and location in which a firearm may lawfully be placed in a home, building, trailer, vehicle, or boat would be ultra vires in that the ordinance conflicts with the general laws of the State of Georgia and because the regulation of firearms, with exceptions not relevant hereto, has been preempted by the General Assembly.

You have requested my unofficial opinion as to whether a proposed Columbus ordinance concerning the restriction of access to handguns by unsupervised minors conflicts with Georgia law. Section 1 of the proposed ordinance provides that “[i]t shall be unlawful for any person to leave any handgun in any place within any home or other building or in any trailer or vehicle or boat where children under the age of 18 years and who are not under the supervision of an adult will have ready access to it.”

Initially, it should be noted that Columbus, as a consolidated government, contains elements of both a municipality and a county. See O.C.G.A. § 36-68-1 et seq. With regard to the home rule legislative power of municipalities, O.C.G.A. § 36-35-3(a) states that “[t]he governing authority of each municipal corporation shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision applicable thereto.” Likewise, O.C.G.A. § 36-35-6(a) states that “[t]he power granted to municipal corporations in subsections (a) and (b) of Code Section 36-35-3 shall not be construed to extend to . . . any other matters which the General Assembly by general law has preempted or may hereafter preempt.” Article 9, Section 2, Paragraph 1 of the 1983 Constitution of the State of Georgia sets forth similar provisions regarding the home rule authority of counties. In construing the validity of a local ordinance, the Supreme Court of Georgia has determined that the test is whether the local government had the power to enact the ordinance and whether the exercise of its power is clearly reasonable. See City of Atlanta v. McKinney, 265 Ga. 161, 163 (1995).

In 1995, the General Assembly enacted O.C.G.A. § 16-11-184. That Code Section provides that “[n]o county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms, components of firearms, firearms dealers, or dealers in firearms components.” O.C.G.A. § 16-11-184(b). In enacting Subsection (a) of that statute and declaring that “the regulation of firearms is properly an issue of general, state-wide concern,” the General Assembly appears to have codified, with certain exceptions, its intent to preempt the regulation of firearms. See Cotton States Mut. Ins. Co. v. DeKalb County, 251 Ga. 309, 312 (1983) (preemption implied from language and scope of general regulating act). The statutory exceptions to the preemption of the regulation of firearms allow local governments to regulate the possession of firearms by local government employees in the course of their employment, to require ownership of firearms by heads of households within the political subdivisions, and to regulate the discharge of firearms within their boundaries. O.C.G.A. § 16-11-184(c)-(e).

Because the proposed ordinance is not limited to employees of Columbus government in the course of their employment, is not a firearm ownership requirement for heads of households within Columbus, and is neither limited to nor even addresses the discharge of firearms within the boundaries of Columbus, it is my opinion that the ordinance is preempted by Georgia law. Specifically, by regulating the manner and location in which a firearm may be lawfully placed in a home, building, trailer, vehicle, or boat, the proposed ordinance conflicts with O.C.G.A. § 16- 11-184(b) in that the ordinance would directly impact the possession, ownership, transport, and carrying of firearms.

The proposed Columbus ordinance is also not consistent with O.C.G.A. § 16-11-126, a criminal statute dealing with the carrying of concealed weapons. Among other things, that Code Section specifically allows any person who is eligible for a license to carry handguns to transport a loaded firearm in a private motor vehicle in an open manner and fully exposed to view or in the glove compartment of the vehicle, or to transport an unloaded firearm enclosed in a case and separated from its ammunition. O.C.G.A. § 16-11-126(d). The 1998 amendment to the statute, effective July 1, 1998, will expand the transportation of a loaded firearm in a private motor vehicle beyond plain view or the glove compartment to include the placement of a firearm in a console or similar compartment. Although the proposed Columbus ordinance purports to exempt instances where access to a handgun is obtained through burglary, larceny, or other acts beyond the control of the owner, it nevertheless appears that a person could fully comply with O.C.G.A. § 16-11-126 and still violate the proposed ordinance.

For these reasons, it is my opinion that the regulation of firearms, with exceptions not relevant hereto, has been preempted by the General Assembly and that the proposed Columbus ordinance regulating the manner and location in which a firearm may be lawfully placed in a home, building, trailer, vehicle, or boat conflicts with the general laws of the State of Georgia. Accordingly, the Council is without the power to enact the proposed ordinance because it would be ultra vires and beyond the constitutional and statutory limitations on home rule.

Prepared by:

KYLE A. PEARSON
Assistant Attorney General

I note that a bill similar in many respects to the proposed Columbus ordinance, Senate Bill 407, was introduced and considered by the General Assembly during the 1998 session. That bill, however, did not pass.